Animal Harm: Perspectives On Why People Harm And Kill Animals

I
Imagine the following scenario: A tyrant, whom we shall call “Tyrant” governs the realm known as Tyrantville. Tyrant decides that a particular minority group in Tyrantville is inferior because its members are physically different from others (they have different hair color from the others in Tyrantville) and because Tyrant regards members of this group to be cognitively inferior (e.g., they are judged as not reasoning as well or, as an overall matter, as being less intelligent than those in the majority).

Tyrant declares all members of the minority group to be chattel slaves who may be owned and used by others to provide slave labor or for other purposes, and may be killed at will by their owners against whom the slaves have no rights. The slaves are usually kept in hideous conditions although some have better living conditions depending on the whims of their owners.

Now Tyrant is a pretty terrible fellow but is not completely bad. Although his slaves have a horrible life, Tyrant enacts a law that requires every slave to be given a lollipop every Sunday at noon. This law is supported by a criminal sanction in that any slave owner who does not give the slave the lollipop at the required time may be subject to a mild sanction. Most owners comply; some do not.

This situation raises at least two sets of questions. The first set of questions focuses on the institutionalized discrimination and exploitation that Tyrant created and in which his non-slave subjects (owners) willingly participate. The second set of questions focuses on why some people don’t give lollipops to the slaves and what can be done to ensure that the harm of not getting the lollipop does not occur.

The same set of questions arises when we talk about animal use. We can focus on our institutional exploitation of animals, which is based on their supposed inferiority to humans, and the fact that we kill 56 billion land animals every year for food alone. Or, we can focus on the extremely tiny amount of harm that is addressed by laws that purport to prohibit inflicting harm on animals. Such laws might well be thought as analogous to Tyrant’s lollipop law.

But someone has got to do the job of writing about the lollipops and Angus Nurse does just that in this book. He asks why we harm animals, but he makes clear that the harm that concerns him “relates to illegal activity rather than any wider notion of harm caused to animals which constitutes a moral wrong.” (5) So Nurse is focusing on the very tiny portion of harm that is the subject of laws that prohibit certain sorts of animal harm.

Nurse does it as well as one can do this sort of thing. His book will be of interest to those who are involved in “animal law,” as well as to at least some of those people who consider themselves as “green criminologists,” who seek to locate certain environmental and animal welfare issues within the study of criminology. But this book will not have much appeal to anyone who is interested in the bigger (or even smaller) questions of animal ethics, which, to expose my bias, I find infinitely more interesting.

II

As mentioned above, Nurse focuses on a limited type of animal harm: “any unauthorized act or omission that violates national or international animal law whether anti-cruelty, conservation, animal protection, wildlife or general law that contains animal protection provisions (including the protection of animals as property) and is subject to either criminal prosecution and criminal sanctions. . . or which provides for civil sanctions to redress the harm caused to the animal whether directly or indirectly.” (57) He examines this harm in a variety of contexts: domestic (primarily companion) animals; traditional fieldsports; cultural identity (whaling, reindeer husbandry, and seal culling); sport and trophy hunting; and trade in wildlife. He argues that animal harm is a “global problem” and proposes an agenda for “dealing with animal harm as a mainstream criminal justice problem,” which recognizes that harming animals is a social harm that should be considered as part of a criminal career and that animal law should be enforced through the criminal law. Nurse maintains that preventing animal harm should be regarded as a public good, and that “animal harm should be integrated into public policy as part of a holistic approach to crime and criminal justice.” (231).

Nurse concludes that people harm animals for a variety of reasons, including that they profit from doing so and also as a result of social, socio-economic, psychological, or emotional strain. He recognizes that many people call for more stringent laws that recognize legal rights for animals but he argues that this is not only unrealistic but will probably be ineffective without first making more effective use of existing legislative, regulatory, and enforcement structures through greater cooperation among agencies and greater integration of laws prohibiting animal harm into the criminal justice system. He correctly observes that government policies weaken any legal protection for animals and that the law relies on a deterrence model of punishment as the primary criminal justice policy. He argues that “a specific approach to animal offending incorporating harm-based and place-based specific policies that directly address the animal harm at issue are required.” (254) This allows for animals “to be recognized and protected as victims of crime” even in the absence of legal rights for animals. (255)

But given that animals are chattel property, why does Nurse think that there can be any significant increase in protection for animals and why does he think that, in the limited context of harm that he considers, it is likely that animals will become “recognized and protected as victims of crime”? It appears to me that although Nurse recognizes (as everyone does) that animals are property and that property status is an important aspect of any discussion about harming animals, he, along with many others who share his optimism, does not appreciate how important property status is.
Animals are economic commodities with market value that, at least as far as the law is concerned, have no inherent or intrinsic value. They are things that have extrinsic or external value. Animals are, of course, a different sort of property in that they, unlike cars or computers, are sentient, or subjectively aware, and they have interests; they have preferences, desires, or wants. All sentient beings have interests in not suffering pain or other deprivations and in satisfying those interests that are peculiar to their species. It costs money to protect animal interests. We generally spend money to protect animal interests only when it is justified as an economic matter—only when we derive a benefit—usually economic—from doing so.

He does not seem to recognize that most of the laws on which he focuses are intended to protect human interests, and, in particular, human interests in property use, and have nothing to do with recognizing the moral importance of animal interests. For example, laws concerning wildlife conservation and environmental protection have nothing to do with protecting animal interests; such laws are about protecting human interests and nothing more.

III

Before the 19th century, animals were, for the most part excluded from membership in the moral and legal community. Although, with the possible exception of Descartes, who considered animals literally to be machines that possessed no consciousness, most people realized that animals had interests but claimed that we could treat animals as if they were Cartesian machines and ignore their interests because they were our inferiors. This inferiority was often expressed as spiritual inferiority (God made humans in God’s image and created the “lower” animals for human use), natural or cognitive inferiority (animals are not rational, cannot think in terms of abstractions, cannot use symbolic communication), or some combination of the two. Animals were not considered as beings to whom we could have direct moral obligations. Rather, we could have obligations that concerned animals, but where the obligation was really owed to humans. So Immanuel Kant thought that we should be kind to animals but not because we owed any obligation to animals; rather, we owed an obligation to be kind to other humans and being cruel to animals would harden us in our dealings with other humans.
Before the 19th century, aside from the medieval practice of putting animals on trial, the law regarded animals merely as any other property people owned and any concern about cruelty was expressed as a concern that cruel behavior toward animals could lead to cruel behavior toward other humans. So the law reflected the moral thinking, which is usually the way it works.

Beginning in the 19th century, progressives who were concerned about human slavery, women, poverty, and other issues became interested in animals. For example lawyer and utilitarian philosopher Jeremy Bentham argued that as long as animals could suffer, that was the only characteristic required to give them moral status. That is, if an animal could suffer, that suffering had to be taken into account when we considered what we ought to do.

Now this did not lead Bentham to conclude that we needed to stop using and killing animals for human purposes. Bentham did not regard animals as self aware. Therefore, they did not care that we used them; they only cared about how we used them. Bentham thought that we should stop using animals for frivolous purposes but he had not the slightest bit of trouble defending our numerically most significant use of animals: eating them. According to Bentham, the cow did not care that we ate her; she only cared about how we treated and killed her.
From this early 19th century beginning, the animal welfare movement grew and now represents our conventional moral wisdom: that we can use and kill animals for human purposes, but we have a moral obligation to treat animals “humanely,” and to not inflict “unnecessary” suffering on them. There are laws that reflect this moral position and that impose relatively mild sanctions on those who engage in behavior that is thought to violate the moral norm. It is not clear whether we owe this obligation to animals directly or not, but, for purposes of understanding the animal welfare position, it really doesn’t matter.

Although a great deal could be said about the animal welfare position both as a moral and a legal matter (and I have said a great deal about it elsewhere), the most important thing for our purposes is that the property status of animals has informed the concept of “necessity” in at least two respects.

First, the “necessity” requirement does not mean that we cannot use animals for unnecessary purposes. For example, no one maintains that it is necessary to eat animal products for optimal health. Arguably all of the hideous suffering and death that we inflict on the 56 billion land animals (and unknown but at least equally large number of fish and other aquatic animals) we consume worldwide is unnecessary. But because animals are property, we may use them for this unnecessary purpose as long as we don’t inflict unnecessary suffering, which means that we don’t inflict more suffering than is required to use the animal for the particular unnecessary purpose.

Second, it costs money to protect animal interests and we generally protect animal interests only when we get a benefit—usually a financial benefit—from doing so. I have argued in my work that the level of animal welfare is linked to that level of interest protection required to exploit the animal in an economically efficient way. For the most part, we treat animals used for food in ways that would constitute torture if humans were involved. The level of harm, even with respect to those animals who receive the best treatment, is shocking. And it’s all legal. It all falls outside of Nurse’s scope of concern. Yes, there are some laws that purport to regulate animal use and to prohibit or mitigate harm to animals. And even if they were enforced exactly as they were intended, they would still permit an enormous amount of harm.

For the most part, the laws that Nurse examines reflect and are shaped by property concerns. They all reflect human interests. So when Nurse asks, “why do we harm animals?” I am somewhat at a loss to think of any answer other than that they are things; that, despite what we say we believe, they have no inherent or intrinsic value protected by the law. They have only extrinsic or external value. Why shouldn’t we harm them? We harm billions of them every year for transparently frivolous reasons. Restrictions on animal harm when we live in a world in which animal harm is ubiquitous, and where harm that is prohibited is indistinguishable from harm that is permitted and even encouraged, are patently absurd.

Let’s ask Nurse’s question in a human context. Imagine that we allowed and even encouraged pedophilia every day of the year except on Christmas Day between 2 p.m. and 3 p.m., when we defined pedophilia to cause harm and prohibited it. Now imagine that we asked why people engaged in pedophilia at the prohibited time although they knew it was “wrong.” But that is like asking why people engage in violating laws that are completely arbitrary and where the prohibited behavior is considered as perfectly fine in every other context. I have to believe a good part of the answer would be that the offending pedophile fails to see why it’s wrong to engage in pedophilia at that particular time when it’s perfectly acceptable the rest of the year. There is no difference in terms of harm to victims. The offending pedophile would in all likelihood look at the prohibition as nonsensical and arbitrary. And the offending pedophile would be right. Any other explanation would seem to be beside the point.

England prohibited hunting foxes with hounds in 2004 and violations of the law are commonplace. Nurse would want to explore the reasons that people violate the law. But it’s obvious, isn’t it? It is still perfectly fine to kill foxes. Despite the “ban,” foxes can still be shot, killed by birds of prey after being tracked by a pair of hounds, and flushed out by no more than two hounds. So the 2004 law did nothing to affect the moral status of the fox. The fox is still a thing that can be killed for no better reason than fun. If I were a person who enjoyed fox hunting with hounds and wouldn’t stand to lose too terribly much if I were caught violating the law, I wouldn’t hesitate a second to use the hounds. Any prohibition on using hounds is incoherent. It is completely arbitrary and makes no sense. The law does not seek to prevent harm inflicted on foxes; it only limits one way in which that completely unnecessary harm can be inflicted.

Several years ago, an American football player, Michael Vick, was arrested and charged with operating a dog fighting enterprise. He entered a plea in which he admitted to doing some pretty brutal things with his dogs. One can still not utter the name of Michael Vick without evoking an emotional, and often angry, reaction from those who think what he did was monstrous. Nurse would ask why Vick did what he did and would provide all sorts of answers but would miss the one I think most obvious. Vick enjoyed sitting around a pit watching dogs fight and most other people liked sitting around the summer barbecue pit roasting the corpses of animals who were treated every bit as badly, if not much worse, than Vick’s dogs. If Vick thought that his activity, arbitrarily prohibited by the law, was no different from institutionalized animal use that most people not only do not regard as wrong but as perfectly morally acceptable and wholesome, he would have been completely right.

What is the difference between the adolescent who tortures a cat and the treatment that billions of chickens receive as a matter of perfectly legal use? Answer: there is no difference.

What is the difference in animal welfare terms between the hunter who kills in season and the one who kills out of season? Answer: there is no difference.

The use of nonhumans by humans involves a profound degree of moral schizophrenia. Our thinking about animals is, more than any area of ethics involving humans, completely confused and delusional. So when Nurse asks why we harm and does not consider the overall context and extent of the harm that occurs, the answer is not likely to provide a great deal of insight.

IV

Nurse’s book is part of a literature which maintains that we do not have to confront the hard moral issues about animals—we do not, according to Nurse, even have to give them legal rights—before we improve their protection and start thinking of them as victims. Nurse believes that we can make animal welfare laws significantly better. I disagree and I think that Nurse and others who promote this view do not understand how the property status of animals will always keep animal welfare standards at a very low level or that many of the laws that supposedly provide protection for nonhuman animals really have nothing to do with animal interests and everything to do with human interests. If things are ever going to change for animals, we need a paradigm shift in our moral thinking.

And we are not likely to find our moral compass as long as we regard mere palate pleasure as a justification for imposing suffering and death on other beings who, like us, are sentient.

Gary L. Francione is Board of Governors Professor, Distinguished Professor of Law and Nicholas deB. Katzenbach Scholar of Law and Philosophy at Rutgers University School of Law—Newark. His latest book is The Animal Rights Debate: Abolition or Regulation? (with Robert Garner), published in 2010 by Columbia University Press.

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